1. This is an appeal by two persons, Siddiq All and Kesho Saran who have been convicted by the Additional Sessions Judge of Sitapur at Kheri, Siddiq Ali has been convicted under Section 409, Penal Code and sentenced to rigorous imprisonment for three years and a fine of Rs. 200 and under Section 467, Penal Code read with Section 109, Penal Code and sentenced to rigorous imprisonment for three years and a fine of Rs. 200 Kesho Saran has been convicted for an offence under Section 467, Penal Code and sentenced to rigorous imprisonment for three years and a fine of Rs. 200 and for an offence under Section 409, Penal Code read with Section 109, Penal Code and sentenced to rigorous imprisonment for three years and a fine of BS. 200. The substantive sentences of imprisonment in the case of both the appellants have been directed to run concurrently.
2. During the course of his detailed and careful arguments on behalf of the two appellants, the learned counsel for the appellants took me through the statements of Some of the witnesses whose evidence was recorded by the learned Additional Sessions Judge in this case. Simultaneously there was occasion to make a reference to the records of two other sessions cases tried by the same Additional Sessions Judge. In all these three trials Siddiq Ali was a common accused. In fact all the three sessions cases arose out of one single case committed to the Court of Session by the Magistrate but the learned Additional Sessions Judge thought it fit to split up the trial into three separate trials. As the statements of the witnesses in the various cases were looked into, it appeared to be quite clear that there had been irregularity in recording the evidence in these cases. The three sessions trials ran almost simultaneously in the lower Court. Proceedings were going on in more than one case on the same date. Some of the witnesses in the three cases happened to be common. It appears that the learned Additional Sessions Judge committed irregularity in bringing on record of one sessions case the statement of a witness recorded in an. other sessions case instead of examining the witness afresh in each trial. Thus a comparison of the statements of the C. I. D. Inspector, Shri Modh Singh, recorded in sessions trials Nos. 86/1 and 86/3 (the case out of which the present appeal arises) clearly shows that his statement was first recorded in sessions trial No. 86/1 and was Subsequently copied out in sessions trial No. 86/3, The whole of the examination-in chief was copied out verbatim. Most of the cross-examination was also copied out except with a few omissions. This copying was done on 14th February 1949, and the record would show that the statement of Shri Modh Singh was purported to be closed for that date at the stage at which the copying from the statement in the other sessions case was finished. On 15th February 1949, further fresh questions were put to Shri Modh Singh with reference to the particular facts arising in sessions trial No. 86/3 and which were probably not relevant to the other sessions trial. In copying out, certain answers which were only relevant to sessions trial No. 86/1 were omitted as they would have appeared out of place in sessions trial No. 86/3. The use of the identical language in the two statements is a clear indication of this copying. Similar evidence of copying was discovered in the statement of Raja Earn. In the case of statement of Shri Modh Singh a question had been put in sessions trial No. 86/1 by making a reference to the statement of the Superintendent of Police (C. I. D.) recorded in sessions trial No. 86/3. The record of the statement of Shri Modh Singh in sessions trial no. 86/1 contains the following sentences:
'Shri Dubey was the S. P. of the C. I. D. investigating branch in December 1947. He was examined as a P. W. in Sessions Trial No. 86/3 in this Court about a, week back.'
The record of his statement in sessions trial No. 86/3 also shows that exactly the same words have been repeated. This repetition of the exact words clearly shows that one statement was copied from the other in sessions trial no. 86/3. If the statement had been recorded independently, the reply would have been that 'Shri Dubey was examined as a prosecution witness in this Court about a week back' instead of the way in which it happens to be recorded, A reference to him as-a witness 'examined in sessions trial No. 86/3 in. this Court' is obviously out of 'place if the statement is recorded in that very trial. This intrinsic evidence clearly shows that there has been copying of statements. Such copying of statements clearly vitiates the trial. Each witnesses to be separately examined in each sessions case. Even the Court in different sessions cases is differently constituted. A Sessions Court consists of the Judge acting with the aid of his assessors, the assessors being different in different cases. The constitution of the Court changes from case to ease. Evidence recorded before one Court, if taken verbatim in another Court, completely vitiates the trial. The assessors of only one of the two cases had the benefit of seeing the actual examination of each witness and his conduct in the witness-box. In the other case the assessors were deprived of that opportunity because the statements were copied out. Since such an illegality ha? been committed in the trial, the convictions based thereon have to be quashed and the obvious course is a re-trial.
3. The learned counsel for the appellants contended that this was not quite a fit case for retrial because the record of the case, as prepared by the lower Court, itself shows that the case is of a highly suspicious nature and a retrial will only be a great hardship on the appellants. At this stage it is premature to go into the merits of the evidence against the appellants and to come to any finding whether prima facie the convictions of the appellants are or are not justified. Any discussion on such a point is likely to prejudice the retrial of the case and, therefore I refrain from going into the merits of the case against the appellants.
4. As a result the appeal is allowed, the convictions and sentences of both the appellants are set aside and the case is remanded for fresh trial.
5. I am given to understand that Shri Grish Chandra who tried this case as the Additional Sessions Judge, Kheri still occupies that office. Since he had already tried the case once and expressed his opinion it is proper that the case is not retried by him, A request was made on behalf of the appellants that if there is to be a retrial, the retrial may take place at Lucknow instead of Sitapur which would be the next nearest place to Kheri. It was pointed out that the appellants would have more facilities for legal advice in Lucknow and the extra cost involved in bringing witnesses to Lucknow instead of Sitapur will not be very material, I, therefore, direct that this case be transferred to the Sessions Judge, Lucknow, who will either try it himself or may send it to any other competent Additional Sessions Judge in Lucknow to try this case.
6. The appellants were granted bail for the period during which their appeal in this Court was pending. They will continue on this bail unless their bail is cancelled on any fresh ground.